There are at least two prevailing views regarding people charged with crimes in the United States.  Those views are amply illustrated by the following two diametrically opposing quotes.  The first quote is from an anonymous public defender in Oakland, California:  “The fact of the matter is you’re dealing with the scum of the earth and they’ll stab you in the back at the first opportunity.  They’ll walk over you and anybody else to get what they want.  They are one cut above the animal – in fact they’re by and large worse.  …They’re just the lowest of the low.”  The contrary view is presented by Cynthia Roseberry, a law professor:  “We as criminal defense lawyers are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process.  It is our job – our sworn duty – as criminal defense lawyers to protect our clients from those people.”

                There are people who are charged by the authorities with crimes that they did not commit just as there are those charged with crimes that they did commit.  It is the duty of the criminal defense lawyer in the United States to try zealously to prevent wrongful convictions (or seek exoneration) of those who did not commit the charged crime, as well as to just as zealously fight for a fair and just result for the client who did commit the charged crime.  Zealous representation of the accused is what leads to the greater possibility that justice for all will be rendered.  When true justice is achieved then, and only then, can we be assured as citizens that the “system” has truly worked.

                Even if our client admits guilt it is still our responsibility to put the prosecution’s evidence to the test of proof beyond a reasonable doubt (the standard of proof in the United States) because if the prosecution’s evidence fails to pass this test, then justice is served by a dismissal of the charge or a finding of not guilty.  As the eminent British jurist William Blackstone once stated, “Better that ten guilty persons escape than that one innocent suffer.”   This has long been the guiding principle of American jurisprudence with respect to the criminal justice system and it has stood the test of time.

                The question often arises, in one form or another, of, “How can you represent someone you know is guilty?”  It isn’t the job of the criminal defense attorney to determine guilt or innocence, but to make sure that our client gets a fair trial in front of the triers of fact.  That means vigorously representing our client so that the prosecution is required to play by the rules of the law and isn’t allowed to use illegally seized or improperly obtained evidence to achieve a conviction.  Likewise, the prosecution must be prohibited by our representation from using simple prejudice against an unpopular cause or group of persons to obtain a wrongful conviction.  In other words, the defense attorney plays a fundamental role in maintaining procedural justice. 

                Even when your client admits guilt, but insists on going to trial, it is the duty of the criminal defense lawyer to pursue a fair trial because the client’s guilt (barring the acceptance of a plea bargain) is not established until and unless a properly appointed trier of fact finds that client guilty based upon legally admissible evidence in a court of law before a jury of one’s peers.

                Ultimately, our job is the same as that of the prosecutor – to do justice or make sure that justice is done.  In the end, that is what the Rule of Law means – following the rules of law so that the same law is applied equally to each and every person charged with a crime.  To do less than this is to allow Rule by the Individual, which subverts the process of equal justice before the law.  The importance of the equal application of the law is because in some cases it is our client’s life that is at stake and in every case their liberty is in danger of being taken away from them.

                The key to being a criminal defense lawyer is doing the work that culminates in a fair result for your client and society.  In large part, that work entails vigorously pursuing a complete investigation of the evidence for and against our client.  Among those duties are: consulting with other lawyers and the appropriate legal experts who may be able to assist our client’s case; consulting with our client’s family members and friends; and doing the necessary legal and factual research on the issues involved.  We also need to talk with our client early and often in order to learn the client’s perspective and interests and how we may best pursue those within the bounds of the law.  The American Bar Association in Standard 4.1, the duty to investigate, notes, “It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty.  The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities.  The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or his stated desire to plead guilty.”  Or as no less of an authority than Mao Zedong said almost eighty years ago, “You can’t solve a problem?  Well, get down and investigate the present facts and its past history!  When you have investigated the problem thoroughly, you will know how to solve it.  Conclusions invariably come after investigation and not before.  Only a blockhead cudgels his brains on his own, or together with a group, to ‘find a solution’ or ‘evolve an idea’ without making any investigation.  It must be stressed that this cannot possibly lead to any effective solution or any good idea.” (Oppose Book Worship, May 1930, First Pocket Edition, page 2.)

                In the United States then the paramount duty of the criminal defense lawyer is not to the government or the shifting winds of public opinion, but to the client and the Constitution of the United States.  In defending our client and protecting the client’s rights against the power of the government we provide the substance to justice which reinforces the Rule of Law.  Or as a prominent Harvard University law professor has acclaimed, “The zealous defense attorney is the last bastion of liberty – the final barrier between an overreaching government and its citizens.  The job of the defense attorney is to challenge the government; to make those in power justify their conduct in relation to the powerless; to articulate and defend the right of those who lack the ability or resources to defend themselves.”  (Alan Dershowitz, The Best Defense, 1982, page 415.)  Or as John Adams, a lawyer and second President of the United States, so eloquently put it, “Now to what higher object, to what greater character, can any mortal aspire that to be possessed of all this knowledge, well digested and ready to command, to assist the feeble and friendless, to discountenance the haughty and lawless, to procure redress to wrongs, the advancement of right, to assert and maintain liberty and virtue, to discourage and abolish tyranny and vice?”

James Gronquist has been a criminal defense lawyer in the United States for over 28 years.  He is currently the Director, National Defenders Resource Center, International Bridges to Justice, Beijing, China.

Copyright  © 2009 by James Gronquist


./inc/footer.php"); ?>